SUPREME COURT

Justices consider Ark. claim against Army Corps

Lawrence Hurley, E&E reporter

Greenwire: Wednesday, October 3, 2012

A majority of Supreme Court justices appeared sympathetic today to the Arkansas Game and Fish Commission's argument that it is owed compensation by the Army Corps of Engineers for timber damage caused by flooding.

The commission claims it deserves compensation under the takings clause of the Fifth Amendment for a loss of revenue in timber sales in the Black River Wildlife Management Area in the northeast part of the state.

The damage to the timber was caused by the Army Corps' management of the Clearwater Dam upriver, the state maintains. Between 1993 and 2000, the Army Corps tinkered with the water flow from the dam, which the commission said led to flooding that eventually killed many mature oak trees at the Black River site (Greenwire, Sept. 26).

In 2009, the U.S. Court of Federal Claims awarded the commission $5.8 million.

The U.S. Court of Appeals for the Federal Circuit reversed that decision in a March 2011 ruling, saying that temporary flooding does not constitute a taking (E&ENews PM, March 30, 2011).

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The question facing the high court is whether temporary flooding of the type that occurred at the Black River site can constitute a taking, which is generally viewed as a permanent loss of property.

Although permanent government-caused flooding has been recognized as a taking by courts, temporary flooding has not, as the federal circuit noted in its ruling.

The Supreme Court justices appeared hostile to the federal government's position -- espoused by Deputy Solicitor General Edwin Kneedler -- that no landowners downstream of a government-operated dam can seek compensation in part because they should be aware of the inherent risks of owning land on a floodplain. The federal government would not "have got into the flood control business" if it was going to face litigation over its management of projects, Kneedler said.

Where the court may face difficulty is in determining in what kind of cases compensation may be allowed for flooding.

"There's never a simple answer," Justice Sonia Sotomayor said.

She noted, for example, that the area in question is already subject to regular, natural flooding.

Some of the justices appeared particularly concerned with Kneedler's contention that landowners downstream could never make a claim even though a property owner with land next to a dam reservoir could potentially seek compensation if the water regularly floods his property.

"Your position seems to be if it's downstream, it's not the government," Justice Anthony Kennedy told Kneedler.

Chief Justice John Roberts seemed to share that concern in pointing out evidence in the record that the Army Corps was aware that the Black River site would be flooded if there were deviations in the water release plan.

"When you opened up the dam, you knew where it was going to go," he said in reference to the commission's land.

James Goodhart, the commission's attorney, could not provide the definitive answer some of the justices wanted over where to draw the line. But he insisted that the government should have to pay for a "direct invasion" of property.

"They knew they were using the land to store this water," he said. "They knew."

Justice Elena Kagan has recused herself from the case, most likely because she was involved in the litigation in her previous position as solicitor general.

The Supreme Court decided to take up the case in April, but in the meantime, the federal government attempted to resolve the dispute by offering the commission $13 million. The commission rejected the offer.

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